An asylum seeker who claims fear of persecution due to being an atheist will have a difficult time establishing that atheism is a religion and therefore protected by U.S. asylum law.

Brutal persecution of late in the name of religion - for example, the slaughter by ISIS of members of various religious groups for their members’ failure to conform to ISIS’ interpretation of its own religion - has focused attention on the religious persecution ground for a grant of U.S. asylum, with asylum seekers probing the limits of its use in protecting vulnerable individuals. The question of where exactly atheists fit into the equation, and whether American legislation or jurisprudence is due for a change with respect to such persons, remains very much a first-order issue for watchers of U.S. immigration law developments.

But is atheism a “religion” in the eyes of U.S. immigration law, such that atheists can gain asylum—and with it the right to live and work permanently in the United States—due to persecution that is “on account of” that protected ground? If not, can any of the other protected grounds—race, national origin, political opinion, or membership in a particular social group—be construed to assist an atheist asylum seeker?

Atheism as a Religion for Asylum Purposes—No Dice (So Far)

While not completely out of the question, an asylum seeker who claims fear of persecution in his or her home country due to the fact that the person is an atheist will have a difficult time satisfying the burden of establishing that atheism is a religion and therefore protected by the religion ground of U.S. asylum law.

Efforts to date on this front have come up short. The argument that atheism is a religion in the sense that it is, at its core, a set of beliefs centered around mankind’s attempt to make sense of the world and our place in it, has not proved persuasive for purposes of U.S. immigration law. In a precedent-setting case widely considered to be a leading authority on the topic of defining religious groups for asylum purposes, called Canas-Segovia v. INS, the Ninth Circuit Court of Appeals said that to get asylum for religious-based persecution, an applicant must demonstrate dedication to “both beliefs and practices” of a defined group.

The generally accepted argument against considering atheism a religion, then, is that atheists simply do not typically have a well-defined set of beliefs and practices that is shared among all (or even most) of them. Atheism is generally not seen as a defined grouping of people who purposefully pursue any kind of even semi-organized program of activities in furtherance of, or pursuant to, their beliefs.

But there is hope that this interpretation could change. It is conceivable that other federal courts—which may be influenced by the Ninth Circuit, but which are not bound by its reasoning—could start considering atheism a religion for asylum purposes. This could lead to U.S. Citizenship and Immigration Services and immigration judges following their lead in adjudicating such cases.

The Supreme Court could also tackle the issue head on, offering a more expansive interpretation of “religion” that includes atheism. American courts—or indeed lawmakers, should they decide to change the asylum laws—could evolve their thinking such that it comports more closely with international jurisprudence’s treatment of the issue.

The approach of international organizations, particularly entities of the United Nations, is particularly influential on American law when it comes to human rights issues (including asylum and refugee issues). The leading U.N. organ for such issues, the High Commissioner for Refugees (UNHCR), includes in its guidelines “atheistic beliefs” as sufficient to constitute a “religion” within that word’s meaning for purposes of refugee protection (and one must meet the definition of a “refugee” under U.S. law to qualify for asylum).

Other Protected Grounds May Help an Atheist Get Asylum in the U.S.

People claiming asylum due to persecution based on atheism have a couple potential alternate routes: by characterizing the prosecution as “on account of” their political opinion, or membership in a particular social group.

In countries where the political system is dominated by religion to the point that the two - the state and religion - are essentially inseparable, persecution for atheism could be indistinguishable from persecution for political reasons, bringing it within the ambit of asylum-qualifying political persecution. The Board of Immigration Appeals (BIA) reasoned along these lines in granting asylum based on political persecution to a woman who was being beaten by her father. The officially Islamic state had refused to step in, deeming the abuse legal under its ultra-strict interpretation of Sharia law.

Of note, and possibly of help to atheists seeking asylym, the definition of a “particular social group” for asylum purposes was expanded by the BIA in another case, Matter of Mogharrabi, when it held that this protected ground includes a group with “a common characteristic that defines [that] group,” which its members “should not be required to change because it is fundamental to their individual identities.”

One can make a plausible argument that some atheists fit that bill, making them a candidate for asylum under the “membership in a particular social group” ground. This important ruling clarified the interpretation of the first of the three required elements for establishing a social group within in the asylum context, which demand that a group be:

composed of people who share a common, “immutable” characteristic,

capable of being defined with particularity, and

“socially distinct within the society in question.”

If you are an atheist seeking asylum in the U.S. based on persecution for your beliefs, your best bet is to seek the help of an experienced immigration attorney. Free or low-cost legal help may also be available, thought nonprofit (charitable) organizations providing legal services to immigrants.